2018 CO 52
Colo.2018Background
- Charlotte Fischer, an 89-year-old nursing home resident, had an arbitration agreement in her admissions packet; her daughter (attorney-in-fact) signed it for her.
- The Health Care Availability Act (HCAA) requires a four-paragraph notice immediately above signature lines, printed in at least ten-point, bold-faced type, informing patients that arbitration is voluntary and describing rescission rights.
- The Facility's agreement included the required language (with some typographical errors) in 12-point, all-capital letters immediately above the signature line but not in bold type.
- After Charlotte's death, her family (the Fischers) sued for wrongful death; the Facility moved to compel arbitration based on the signed agreement.
- Trial court denied the motion; the court of appeals affirmed, concluding the HCAA requires strict compliance and that the absence of bold type invalidated the agreement.
- The Colorado Supreme Court granted certiorari to decide whether the HCAA requires strict or substantial compliance and whether the lack of bold type voided the arbitration agreement.
Issues
| Issue | Plaintiff's Argument (Fischers) | Defendant's Argument (Facility) | Held |
|---|---|---|---|
| Does § 13-64-403 require strict or substantial compliance? | The HCAA's mandatory language and formatting (use of “shall,” explicit typography and penalties) require strict compliance. | The statute's text is ambiguous; compliance should be measured by whether the purpose (voluntariness/notice) is met—substantial compliance suffices. | Substantial compliance is required. The statute's text is inconclusive; purpose favors substantial compliance. |
| Did the Agreement's lack of bold type invalidate the arbitration agreement? | Absence of bold type (and other typographical errors) renders the notice noncompliant and the arbitration clause unenforceable. | The notice, though not bolded, was prominent (12‑point, all caps, set apart) and satisfied the purpose of the requirement—so the Agreement substantially complied. | The Agreement substantially complied despite not being bold-faced; the Facility met the formatting purpose (notice/voluntariness). |
Key Cases Cited
- Finnie v. Jefferson Cty. Sch. Dist. R-1, 79 P.3d 1253 (Colo. 2003) (statutory compliance standard determined by purpose; substantial compliance applied)
- Woodsmall v. Reg'l Transp. Dist., 800 P.2d 63 (Colo. 1990) (degree of compliance depends on legislative objective)
- Moffett v. Life Care Ctrs. of Am., 219 P.3d 1068 (Colo. 2009) (HCAA permits arbitration but includes protections to ensure voluntariness)
- Bickel v. City of Boulder, 885 P.2d 215 (Colo. 1994) (articulated multi-factor test for substantial compliance)
- Allen v. Pacheco, 71 P.3d 375 (Colo. 2003) (prior HCAA case that did not decide strict vs. substantial compliance)